01A13859
10-16-2002
Linda A. Piggee, Complainant, v. Thomas E. White, Secretary, Department of the Army, Agency.
Linda A. Piggee v. Department of the Army
01A13859
October 16, 2002
.
Linda A. Piggee,
Complainant,
v.
Thomas E. White,
Secretary,
Department of the Army,
Agency.
Appeal No. 01A13859
Agency No. BODNF09912J0510
DECISION
Complainant timely initiated an appeal from a final agency decision
(FAD) concerning her complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964 (Title VII),
as amended, 42 U.S.C. � 2000e et seq. The appeal is accepted pursuant
to 29 C.F.R. � 1614.405. For the following reasons, the Commission
AFFIRMS the agency's final decision.
The record reveals that during the relevant time, complainant was
employed as a NF-1101-01, Business Manager (Operations) at the agency's
Noncommissioned Officers (NCO) facility in Fort Bragg, North Carolina.
Complainant was informed that due to a reorganization within the NCO Club,
her position would be abolished effected December 6, 1999. The record
reflects that the written notice of her pending separation advised
complainant of her placement rights and assistance available to her.
Complainant's supervisor (S1) granted her leave with pay to seek other
employment. Thereafter, complainant was separated by business-based
action on December 6, 1999.
The record also reflects that prior to and after her separation,
complainant requested to be placed in the position of NS-7405-03,
Bartender Foreman at the NCO Club. Although she applied, complainant
was not selected for the position.
Complainant sought EEO counseling and subsequently filed a formal
complaint on February 2, 2000, alleging that she was discriminated
against on the bases of race (African-American) and reprisal (prior
protected activity under Title VII) when she was removed and not selected
for the bartender position. At the conclusion of the investigation,
complainant was informed of her right to request a hearing before an EEOC
Administrative Judge or alternatively, to receive a final decision by
the agency. Complainant requested that the agency issue a final decision.
In its FAD, the agency found that complainant established a prima facie
case of race discrimination with respect to her non-selection, but did not
establish a prima facie case of reprisal. The FAD found that complainant
did not establish a prima facie case of discrimination on any basis with
respect to her separation. On appeal, complainant contends, among other
things, that the agency failed to articulate legitimate, nondiscriminatory
reasons for its actions. The agency requests that we affirm its FAD.
In the absence of direct evidence of discrimination, the allocation of
burdens and order of presentation of proof in a Title VII case alleging
discrimination is a three-step process. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802-803 (1973); see Hochstadt v. Worcestor Foundation
for Experimental Biology, Inc., 425 F. Supp. 318 (D. Mass. 1976),
aff'd 545 F.2d 222 (1st Cir. 1976) (applying McDonnell Douglas to
retaliation cases). First, complainant must establish a prima facie
case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination; i.e., that a
prohibited consideration was a factor in the adverse employment action.
McDonnell Douglas, 411 U.S. at 802. Next, the agency must articulate a
legitimate, nondiscriminatory reason(s) for its actions. Texas Department
of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the agency
is successful, then the complainant must prove, by a preponderance of
the evidence, that the legitimate reason(s) proffered by the agency was
a pretext for discrimination. Id. at 256.
Complainant may establish a prima facie case of race discrimination
involving non-selection by showing: (1) she is a member of a protected
class; (2) she was qualified for the position; (3) she was not selected
for the position; and (4) she was accorded less favorable treatment
from that given to persons otherwise similarly situated. Williams
v. Department of Education, EEOC Request No. 05970561 (August 6, 1998).
To establish a prima facie case of discrimination with regard to her
separation, complainant must establish that: (1) she is a member of
a protected group under Title VII; (2) she was meeting the legitimate
expectations of her employer; and (3) she was discharged without cause, or
was singled out for termination while similarly situated employees not in
her protected group were treated more favorably. Flowers v. Crouch-Walker
Corp., 552 F. 2d 1277 (7th Cir. 1977). Complainant may also set forth
evidence of acts from which, if otherwise unexplained, an inference
of discrimination can be drawn. Furnco Construction Corp. v. Waters,
438 U.S. 567, 576 (1978).
Complainant can establish a prima facie case of reprisal discrimination
with respect to her non-selection or separation by presenting facts that,
if unexplained, reasonably give rise to an inference of discrimination.
Shapiro v. Social Security Admin., EEOC Request No. 05960403 (Dec. 6,
1996) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973)). Specifically, in a reprisal claim, and in accordance with
the burdens set forth in McDonnell Douglas, supra; Hochstadt, supra;
and Coffman v. Department of Veteran Affairs, EEOC Request No. 05960473
(November 20, 1997), complainant may establish a prima facie case of
reprisal by showing that: (1) she engaged in a protected activity;
(2) the agency was aware of the protected activity; (3) subsequently,
she was subjected to adverse treatment by the agency; and (4) a nexus
exists between the protected activity and the adverse treatment.
In regard to complainant's reprisal claims, the Commission concludes
that complainant did not establish a prima facie case. In particular,
the Commission finds that complainant failed to show that S1 was aware
of her prior protected activity.
The Commission notes that the reorganization eliminated the positions
of two of the four Business Managers, and that a While Business Manager
also was separated. Assuming that complainant established a prima
facie case of race discrimination, we are not persuaded that the agency
did not sufficiently articulate its reasons for the reorganization and
resulting separations or that complainant established that the agency's
reasons for eliminating her position were a pretext for discrimination.
While complainant disagrees with the agency's proffered reasons, and
argues that various officials should have made different decisions,
we find her contentions insufficient to establish pretext.
In regard to the non-selection, the Commission finds that complainant
established a prima facie case of race discrimination. Specifically,
complainant is a member of a protected class. She applied, and was
qualified, for the Bartender Foreman position. The agency selected a
White applicant for the position.
Because complainant has established a prima facie case of race
discrimination, the agency must articulate a legitimate, nondiscriminatory
reason for its action. The record establishes that the Bartender Foreman
position was advertised and the selectee was chosen based on her twenty
plus years of hands-on bartending experience. The record also reflects
that the selectee had a proven record scheduling the bar staff; training
bartenders and cocktail waitresses; doing inventory; and stocking the bar.
Because the agency has articulated a legitimate, nondiscriminatory
reason for the non-selection, complainant must show that the reason is
a pretext for discriminatory animus. In a non-selection case, pretext
may be demonstrated in a number of ways, including a showing that
complainant's qualifications are observably superior to those of the
selectee(s). Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981).
However, an employer has the discretion to choose among equally
qualified candidates. Canham v. Oberlin College, 666 F.2d 1057, 1061
(6th Cir. 1981). However, in the instant case and despite her arguments
to the contrary, we find that complainant has not presented sufficient
evidence that her qualifications were �observably superior.�
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 16, 2002
__________________
Date